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2000 DIGILAW 630 (PAT)

Phulena Prasad v. State Of Bihar

2000-04-25

M.L.VISA

body2000
Judgment 1. This writ petition has been filed by the petitioner for quashing the order dated 7.4.99 passed by the Sub-divisional Judicial Magistrate, Gopalganj in Complaint Case no. 2084/98 dismissing the complaint of petitioner u/s 203 of Code of Criminal Procedure (in short, Cr.P.C.) and the order dated 31.7.99 passed by the 2nd Addl. Sessions Judge, Gopalganj in Cr. Revision No. 106/99 affirming the aforesaid order of S.D.J.M., Gopalganj. 2. The brief facts giving rise to this application are that the petitioner filed a complaint petition in the court of Chief Judicial Magistrate, Gopalganj against opposite party nos. 2 and 3 and two unknown persons under sections 363, 364, 365/34 of the Indian Penal Code (in short, I.P.C.) on the allegation of kidnapping his son Dharmendra Kumar. The learned C.J.M., Gopalganj made over the case to the court of S.D.J.M., Gopalganj under section 192(1) Cr.P.C. for enquiry and trial. The learned S.D.J.M. took statement of complainant on S.A. and also recorded statements of four other witnesses produced by complainant under section 202 Cr.P.C. Thereafter the learned S.D.J.M. by his order dated 5.1.99 (Annexure-A series of counter affidavit) by observing that : "All the witnesses adduced by the complainant are family members of the complainant and no independent witness has been cited as witness in this case" and also "Considering the nature of the alleged offence and serious nature of the case and evidence adduced by the complainant" held that before any further proceeding it was necessary to call for a report from the Officer- in-charge of Baikunthpur Police Station regarding the alleged occurrence with a direction to search out the victim Dharmendra Kumar, who was still then traceless. The Officer-in-charge of Baikunthpur P.S. submitted his report (Annexure-C of counter affidavit). Thereafter the learned S.D.J.M. by his impugned order dated 7.4.99 by taking into consideration the police report dismissed the complaint of the petitioner under section 203 Cr.P.C. Against this order the petitioner filed a Cr. Revision No. 106/99 which was heard and decided by 2nd Addl. Sessions Judge, Gopalganj who by his order dated 31.7.99 upheld the order passed by learned S.D.J.M., Gopalganj and dismissed the revision. The petitioner is, therefore, before this Court assailing the aforesaid orders passed by the learned S.D.J.M. and learned 2nd Addl. Sessions Judge, Gopalganj. 3. The learned counsel on behalf of opposite party nos. Sessions Judge, Gopalganj who by his order dated 31.7.99 upheld the order passed by learned S.D.J.M., Gopalganj and dismissed the revision. The petitioner is, therefore, before this Court assailing the aforesaid orders passed by the learned S.D.J.M. and learned 2nd Addl. Sessions Judge, Gopalganj. 3. The learned counsel on behalf of opposite party nos. 2 and 3 has first of all raised the question of maintainability of this application. Relying upon a decision of the Supreme Court in the case of Jagir Singh V/s. Ranbir Singh and Another ( AIR 1979 SC 381 ) he has submitted that once the petitioner exercised his option to move the Sessions Court in a criminal revision against the order passed by the learned S.D.J.M., Gopalganj he is precluded u/s 397 (3) Cr.P.C. from raising the same matter before this Court. The facts of the present case are different from the facts of the case relied upon by the learned counsel on behalf of opposite parties. In the present case the application is not for revision. The Supreme Court in the case of Krishnan and Another V/s. Krishnaveni and Another [ (1997) 4 S.C.C. 241 ] has held as follows : "10. "Ordinarily, when revision has been barred by section 397 (3) of the Code, of a person-accused/complainant-cannot be allowed to take recourse to the revision to the High Court under section 397(1) or under inherent powers of the High Court under section 482 of the Code since it may amount to circumvention of the provisions of section 397(3) or section 397(2) of the Code. It is seen that the High Court has suo motu power under section 401 and continuous supervisory jurisdiction under section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under section 397(1) read with section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. These malpractices need to be curbed and public justice can be ensured only when trial is conducted expeditiously." 4. It is true that the present application has not been filed under section 482 Cr.P.C. or under Article 227 of the Constitution of India but then the Supreme Court in the case of Pepsi Foods and Another V/s. Special Judicial Magistrate and others, (1998) 5 SCC 749 has held that nomenclature under which petition filed is not relevant and petition under Article 226 can be treated as one under section 227 or section 482 Cr.P.C. 5. In the present case the learned S.D.J.M., after receipt of the complaint under section 192(1) Cr.P.C. recorded the statement of complainant on S.A. and thereafter recorded the statements of four witnesses produced by the complainant. Section 202 Cr.P.C. lays down that "Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding". 6. 6. So it is clear that the learned Magistrate on receipt of complaint which was made over to him under section 192(1) Cr.P.C. chose the mode of enquiring the case himself but after recording the statement of complainant on S.A. and statements of four more witnesses he asked the police to submit a report regarding the alleged occurrence with a direction to search out the affected victim. It means that the learned S.D.J.M. took the recourse of both the modes prescribed under section 202 Cr.P.C, i.e., "either to enquire into the case himself or direct investigation." In my opinion, the procedure followed by learned S.D.J.M. in taking the recourse of both the modes is not correct and permissible by section 202 Cr.P.C. which clearly lays down that the Magistrate will "either enquire the case himself or direct the investigation to be made by a police officer or by such other person which he thinks fit and proper". The use of word "Or" makes it clear that any one of the modes out of the two has to be chosen. I am unable to accept the submission made on behalf of opposite parties that the learned Magistrate thought it necessary to make search of the victim boy and, therefore, by directing the police to submit report he has not committed any error. Had the Magistrate taken help of police only in respect of search of the victim the matter would have been different but in this case the order (Annexure-A series of counter-affidavit) of the Magistrate by which he directed the police to report clearly shows that he ordered the police for submitting a report regarding the alleged occurrence with a direction to search out the victim. So it is clear that he did not simply asked the police to search out victim boy but he also asked the police to submit report regarding the alleged occurrence. The impugned order dated 7.4.99 passed by the learned S.D.J.M. dismissing the complaint under section 203 Cr.P.C. which has been affirmed by the learned 2nd Addl. Sessions Judge by his order dated 31.7.99 passed in Cr. Revision No. 106/99 shows that while dismissing the complaint of petitioner he took into consideration the report submitted by the police that the complainant had himself kept his son secretly and had filed a false case against opposite parties on account of land dispute. Sessions Judge by his order dated 31.7.99 passed in Cr. Revision No. 106/99 shows that while dismissing the complaint of petitioner he took into consideration the report submitted by the police that the complainant had himself kept his son secretly and had filed a false case against opposite parties on account of land dispute. It is true that in the concluding line of the order the learned S.D.J.M. has mentioned that considering the facts and circumstances of the case, the evidence adduced by complainant under section 202 Cr.P.C. and report submitted by police the complaint is dismissed but then after going through the entire order it appears that main consideration for dismissing the complaint was the report submitted by the police. It is not only that the Magistrate in dealing with the complaint adopted both alternatives provided by section 202 Cr.P.C. against the provision of the law, his order directing the police to investigate suffers from another error. In the complaint petition itself the petitioner has clearly stated that he had gone to police station to lodge the case but he was not heard because the police is in collusion with the accused persons. In such circumstance directing the police to investigate and submit a report was not proper. 7. In the present case I find that the procedure as laid down by section 202 Cr.P.C. has not been correctly followed and the order passed by the learned S.D.J.M., Gopalganj directing investigation by police after enquiring into the case himself is not in accordance with law. It is a fit case which requires the exercise of inherent power by this Court under section 482 Cr.P.C. 8. In the result this application treating the same under section 482 Cr.P.C. is allowed. The order dated 7.4.99 passed by learned S.D.J.M., Gopalganj in Complaint Case No. 2084/98 as well as the order dated 31.7.99 passed by the 2nd Addl. Sessions Judge, Gopalganj in Cr. Revision No. 106/99 are hereby quashed. The case is remanded back to the court of S.D.J.M., Gopalganj for holding further enquiry according to law.